Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nuala Donly Freund, Applicant
AND:
Toronto Standard Condominium Corporation No. 1703, Respondent
BEFORE: The Honourable Justice J. A. Desotti
COUNSEL: K. DeBlock Boersma, Counsel, for the Applicant
M. Arnold, Counsel, for the Respondent
HEARD: In Writing
ENDORSEMENT
A. Costs
1The sole remaining issue before me is that of costs. The applicant submits that even though she was unsuccessful, that there should be no costs awarded since her case was “a novel interpretation of an uncertain law” and of public importance.
2The respondent indicated in a September 1, 2017 e-mail that the applicant should consider withdrawing her case or face the possibility of the respondent seeking a cost award of $30,000.00. On October 13th, 2017 the respondent served an offer to settle the matter under Rule 49.10, that the respondent would pay the applicant the sum of $5,000.00 should the application be withdrawn.
3While I can appreciate the novelty in the possible interpretation of the law, I would not conclude that the position taken by the applicant is one that can be characterized as legal uncertainty. Nevertheless, there does seem to be some issue of hardship as reflected in the needs and means of the applicant.
4The respondent is seeking costs on a partial indemnity basis of $37,598.49 and substantial indemnity of $53,102.09. I am fixing costs of $27,500.00 inclusive of disbursements and H.S.T. as way of reflecting both the issue of hardship and the complexity involved in this litigation.
5My finding that there was no bad faith on the part of the respondent and that there was no oppressive conduct, threatening conduct, unfairly prejudicial conduct, nor an unfair disregard of the interest of the applicant by the respondent makes it mandatory for some meaningful cost award.
The Honourable Mr. Justice John A. Desotti
Date: February 5, 2018